What Obama Sees in Kagan

By Garrett Epps

"What is the difference between Bush appointing Harriet Miers and Obama appointing Elena Kagan?" a conservative lawyer from Oklahoma asked recently at the annual meeting of a group of lawyers.

At the rhetorical level of conservative grievance, the question was absurd. Miers would have had to stretch herself to be marginally qualified for the Supreme Court; Kagan, by contrast, has dazzled the leading legal minds of our time, liberal and conservative. Can anyone who studies her record doubt that she will excel in her new role?

But I was left thinking that the Miers and Kagan nominations were alike in one way: each offered a very direct insight into the worldview of the president who nominated her. Presidents nominate justices for many reasons -- political payoffs (Earl Warren); symbolism (Thurgood Marshall); even just to get rid of a bothersome cabinet member (Salmon P. Chase and James C. McReynolds). But sometimes they make choices of the heart. (John Kennedy with Byron White; Gerald Ford with John Paul Stevens.) Kagan, I think, is Obama's choice of the heart. He sees himself in her.

Miers reflected Bush's heart. "I've known Harriet for more than a decade," he said when he announced her nomination on October 2, 2005. "I know her heart. I know her character." Bush's message was: I like Miers; she's loyal to me. He was, I think, astounded to learn that even members of his own party expected more out of a justice than Bush-family credentials.

Nominating Kagan on May 10, Obama said, "Someone as gifted as Elena could easily have settled into a comfortable life in a corporate law practice. Instead, she chose a life of service -- service to her students, service to her country, service to the law and to all those whose lives it shapes." Obama's message was: like me, Kagan has used her elite education in service of ordinary people.

On its face, that claim is also absurd. Kagan's career has been admirable but golden; from the day she entered college, she has nestled inside some of the most powerful elite institutions in the country: Princeton, Harvard, the University of Chicago, and the White House. That these positions represent the sacrifice of a "comfortable life" in some bill-by-the-hour law factory is laughable; those firms are full of desperate burnouts who would kill for any one of the jobs she's held. And in no way has her career been dominated by devotion to a cause. Compare it with that of hundreds of young lawyers who have taken their elite law degrees into low-paying legal aid, public-defender, and non-profit advocacy jobs.

But Obama, I think, meant what he said: he sees Kagan's career as something that ordinary people have benefited from. That belief offers us a glimpse into his own character, and into the promise and peril of his presidency.

Consider that Obama forwent political advantage to name her. She brings no "compelling personal story" to her hearings -- no career as an advocate for equality (like Justice Ginsburg); no struggle up from poverty (like Justices Sotomayor and Thomas). She brings no geographic, ethnic, or religious diversity to the Court. She swings no political weight with any part of Obama's political base, particularly the progressive wing of the party that powered his campaign and feels badly neglected.

In fact, if few can rationally oppose such a brilliant nominee, not many people seem thrilled about her either. And in a way that Obama may not realize, the symbolism of a Supreme Court entirely made up of Harvard and Yale graduates is devastating.

How could Obama see himself in Kagan? He is the fatherless biracial child of a wandering mother, with a modest, multicultural upbringing at the literal periphery of American life; she is the child of two solid, New York-based professionals, raised in comfort in the toniest borough of the greatest city in the world.

What they share in common is precisely those elite institutions that Kagan represents. Reading David Remnick's exhaustive biography of Obama, The Bridge, I was struck by the way Columbia University and Harvard Law School transformed Obama's life. The Ivy League schools were a poor young man's ticket from obscurity into the great world. Brilliant and talented but somewhat unfocused, the young Obama became himself as president of the Harvard Law Review.

One of the hopeful stories of the past quarter-century is the way these elite schools in fact have transformed themselves into engines of mobility for the very top students among poor and minority populations. In my days as an undergraduate, they disproportionately served well-born but ever-so-slightly dim prep boys like George Bush; today they are mercilessly gender-blind, diverse, and meritocratic. And so, to Obama, a student like Kagan may seem to have taken the same journey as one like himself.

If this in fact is Obama's vision, it is a partial explanation for the curious disconnect between his promise and his presidency. The candidate of "Change We Can Believe In" has created an administration made up almost entirely of insiders. Of his top four cabinet positions, one is a Bush holdover; two (Attorney General Eric Holder and Treasury Secretary Timothy Geithner) are Clinton revenants; and the forth is an actual Clinton. Challenged early on about the timid nature of his appointments, Obama said, "Understand where the vision for change comes from, first and foremost. It comes from me." A year and a half into his presidency, one feels a nagging worry that the vision does not fully perceive the desperation among many for whom change solely at the top -- whether a superbly qualified justice or a new president of the Harvard Law Review -- means nothing.